from the yes-we'll-add-the-obligatory-xkcd dept

Donald Trump seems to be showing off what would happen if your prototypical internet troll had way too much money at his disposal. As you may have heard, he's putting on a big show of "running" for President, though as many have recognized, the move appears to be a hell of a lot more about getting himself publicity (thankfully, at least some news organizations are properly categorizing stories about Trump as entertainment rather than politics). Of course, the plan to get more attention may be backfiring somewhat, as some of the ridiculous comments he's made "on the campaign" are coming back to bite him -- including Univision cutting ties with him over the Miss USA telecast and NBC dumping both the pageants and his Apprentice series (that thing is still on?).

In response, Trump has filed what has to be one of the funniest lawsuits we've seen in a long time against Univision over the cancelled deal. It honestly reads like one of those nutty conspiracy theory lawsuits we see all the time, often filed pro se. You'd think that Trump would have trouble finding lawyers willing to file nuttiness on his behalf, but apparently there's always someone. It even resorts to the worst trolling tactic of internet commenters: complaining that his "First Amendment rights" are being violated because Univision dropped him. And it all involves a conspiracy involving Hillary Clinton. Seriously.

While Univision has claimed in the media that its decision to cut ties with MUO came in response to certain comments by Mr. Trump during a June 16, 2015 campaign speech announcing his candidacy for President of the United States, the decision was, in reality, a thinly
veiled attempt by Univision, a privately held company principally owned by longtime Clinton
Foundation donor and current Hillary Clinton fundraiser, Haim Saban, to suppress Mr. Trump's
freedom of speech under the First Amendment as he begins to campaign for the nation's
presidency and, in recent weeks, has dramatically risen in the polls while expressing critical
views of Mrs. Clinton. Little else can explain Univision's decision to not only abandon its
contractual relationship with MUO, but also, upon information and belief, pressure NBC to
follow suit and cut longstanding ties with Plaintiffs nearly two weeks after the statements were
made.

First of all, as all of you (minus a few trolls) are currently screaming right now, no the First Amendment has absolutely nothing to do with this. We'll let the obligatory xkcd explain:

The statement is also entirely superfluous to the lawsuit as well, as none of the actual legal claims have anything to do with his First Amendment rights. Apparently Trump could get the lawyers to throw that bit into the description of the case, but when it came time to make actual claims, even the lawyers wouldn't go so far as to make a First Amendment claim.

Also, "little else can explain?" Really? Actually, there are tons of other explanations, with many of them being a hell of a lot more plausible than any fear of Trump being a legitimate contender for the White House -- for example, the actually stated reason that Trump out and out offended the entire country of Mexico with some ridiculous statements.

Next up in the internet troll playbook, we have the ridiculous claim of "defamation" over statements that the person doesn't like, but which are clearly statements of opinion, rather than fact:

In a move which can only be described as both tasteless and defamatory, on June
25, 2015, Mr. Ciurana, Univision's President of Programing and Content, then posted a photo on
his official Univision Instagram account comparing Mr. Trump to Dylann Roof, the 21 year old
who was recently arrested in the murder of nine (9) African-Americans attending bible study at a
church in Charleston, South Carolina, one of the worst hate crimes to ever take place on U.S.
soil. While Mr. Cuirana would later remove the defamatory post, the damage was already done:
almost immediately, Mr. Ciurana's post was picked up by the media and became the subject of
hundreds, if not thousands, of press articles, yet another example of Univision's dubious efforts
to create a false narrative in an attempt to upset Mr. Trump's longstanding personal and business
relationship with the Hispanic community.

If you're curious, here's the Instagram that Alberto Ciurana put up:

It's pretty clearly a somewhat weak attempt at humor, mocking the hair cuts of Trump and Roof. Tasteless? Perhaps, but there's no law requiring anyone to be tasteful in their internet jokes. Defamatory? Not in any way, shape or form. Not even close. And yet, unlike the non sequitur (and incorrect) First Amendment claims earlier, the lawsuit actually does claim defamation.

It's entirely possible that there are legitimate issues concerning breach of contract here, but even most of that seems like a stretch. Because Univision didn't just cut ties with Trump, it actually agreed to pay the full licensing amounts it promised for the next five years (totaling $13.5 million). In other words, Trump actually didn't lose any direct money from this, because Univision paid up (and, in theory, he could try to license it to someone else, though I'm not sure who would want to pay at this point). But Trump is -- hilariously -- claiming damages of $500 million because now people won't see the pageants.

Of course, Trump's own arguments undermine his arguments (because of course they do). The lawsuit repeatedly brags that there was a bidding war earlier this year, in which Univision emerged victorious. Thus, at least a few months ago, other TV media properties wished to broadcast the pageants. If it was true that this was all just a grand conspiracy by Hillary Clinton supporter Saban, then you'd think that Trump could simply move on to whoever else was in that bidding war (while keeping all the money that Univision paid him anyway!). But, of course, if the real reason for the cancellation was because of Trump's comments about Mexico and the concern about how Spanish-speaking audiences felt about that -- well, then Trump wouldn't be able to find that alternative.

The lawsuit is then equally hilarious in arguing that it can't possibly be Trump's offensive comments about Mexico because Trump has said the same offensive crap many times before. That seems like an odd thing to argue in such a lawsuit, but it's what Trump's lawyers have chosen to claim:

In reality, however, Mr. Trump's calls for immigration reform, particularly with
respect to the U.S.-Mexican border, were nothing new. Indeed, for over a decade, Mr. Trump
had, in numerous television and news interviews, consistently voiced his concerns regarding the
influx of illegal immigrants pouring into the United States across the Mexican border and the
crime that has resulted therefrom, views which were widely reported by every major media
outlet, including, both Univision and NBC.

As Mr. Trump explained in an interview with Fox News' Bill O'Reilly on March
30, 2011, "[t]hey're coming over, and they're climbing over a fence, and there's nobody within
10 miles -- and they're selling drugs all over the place, they're killing people all over the place --
and we're not doing anything about it."

Indeed. It may be true that Trump has said offensive things in the past, but that doesn't mean that Univision can't later decide that the greater attention paid to his more recent offensive comments are such that it no longer wishes to do business with him. There's no rule anywhere that says, "Well, if you didn't complain four years ago when I said some stupid shit, you can't complaint now!" Even if it's true that Univision is only making this decision because Trump's comments went a bit viral, that's Univision's decision to make, and his previous comments are completely meaningless.

Frankly, this lawsuit is absolutely hilarious. The chances of it going anywhere are pretty slim. The First Amendment arguments are ridiculous, but meaningless, as there's no actual legal claim there. The defamation claims are going to get laughed out of court. The whole thing is fairly hilarious, and fits in with the designation of Trump as "entertainment" rather than anything even remotely serious.

from the i-see-dead-people dept

Well, this is a new one for me. I've never watched the now-concluded show Southland, but it was apparently a typical police procedural show known for being particularly realistic and gritty. As you'd imagine for such a show, the opening credits montage was apparently equally gritty and realistic. So realistic, in fact, that the show's producers used some real-life autopsy photos from real murder victims. One victim's family is, to say the least, not pleased. The victim's mother and sister have filed suit in California.

The suit was filed by Hilda Abarca and Jessica Abarca on their own behalf and as successor to the late Andy Nelson Abarca, who the suit says was murdered in 2005. The defendants are Warner Bros. Television, producer John Wells, NBC, Turner Network Television, the city of Los Angeles, the County of Los Angeles and Warner Home Video.

According to the suit Andy Nelson Abarca was murdered on Sept. 28, 2005. In mid-September 2013 the plaintiffs say they saw his autopsy photo at the beginning of Southland, apparently taken while his body was in the custody of the country coroner.

I'd really like at this point to tell you all what the actual law regarding autopsy photos and their usage is, but it's one of those areas of law so spiderwebbed throughout federal and state laws that it's quite difficult to come to any real conclusions. The Southern Poverty Law Center's explanation in an unrelated post appears to be that autopsies and their photos are generally considered public domain, except of course when individual states carve out exemptions to this for specific types of usage (i.e. pending criminal court cases). California law is especially ambiguous on this front.

In some states, including California, autopsy reports are deemed to be confidential under public-records exemptions that protect confidential law enforcement records being used in pending criminal cases. In such states, it’s possible to go back and argue for access once the prosecution is concluded and the “pending criminal case” rationale no longer applies.

Since this instance has absolutely nothing to do with a pending court case, one would think the general rule of thumb, autopsies are public records, would apply. The law being as ambiguous as it is, however, means this case is likely to go forward without a swift dismissal. And, boy, is the suit from the family members a doozy.

As a result of the use of this photo, the suit says both the mother and daughter have “suffered anxiety, anger, hopelessness, fear and distrust of authority,” as well as “physical and emotional discomfort, injury and damage, apprehension, psychological trauma, loss of dignity, nightmares, loss of trust” and other injuries. The suit says this has impacted their health, strength and activity and caused injury to their nervous system and person. It means they will have to incur expenses to treat psychological injuries using drugs and others “sundries” required in the treatment.

The suit seeks damages of at least $750 for each unauthorized use (every time the show played) as well as punitive damages and an injunction to stop the future use of the photo.

As anyone who has read my work knows, I certainly would never want to be insensitive to someone filing a lawsuit, but it strikes me that one would have to have a real commitment to watching a show's opening montage that included such damaging mental material to warrant the kind of physical and psychological therapy alleged by the suit, not to mention the pharmaceuticals. It's also unclear to me how an opening montage that features the lifeless body of a loved one would cause any damage to the nervous system and person of someone watching the images, unless of course these people own a television that has the capacity to punch them, in which case, I mean, just throw out the TV, right? I mean, the two family members could just use their remotes.

That said, the case might be useful in getting some more solid caselaw on the books regarding the use of autopsy records and their status as public records. While I can understand the discomfort of this particular family's plight, the end result should not be more barriers to public information and work performed by public servants.

from the regulatory-theatrics dept

As Comcast pushes for regulatory approval of its next major merger (the acquisition of Time Warner Cable), the company is pointing to its last major merger (the acquisition of NBC Universal) as an example of how tough regulators and meaningful merger conditions will keep the company honest as it grows ever larger. In an FCC filing (pdf) the cable giant pats itself on the back for over-delivering when it comes to meeting conditions placed upon the company after acquiring NBC. According to Comcast, it's "simply indisputable that we have honored – in fact, over-delivered – on our commitments."

The catch? Comcast created most of the NBC merger conditions itself, knowing full well it would meet them during the ordinary course of doing business. Still, in many cases even those conditions proved to be too much for the company.

Most of the NBC conditions involved promising modest broadband coverage goals by certain dates, goals the company was already on the cusp of completing (or in some cases had already completed) anyway. Other merger conditions, like offering $10, 1.5 Mbps broadband to families that qualify for the National School Lunch Program (you can't owe Comcast money -- which the poor usually do, and can't have existing Comcast broadband service), was something Comcast planned to offer much earlier but withheld to get the FCC to sign off on the deal. Comcast's "over delivery" on that condition resulted in protests on the streets of its home town of Philadelphia by people who claimed the option had too many restrictions and was intentionally designed to be difficult to sign up for (the company has since bumped the speed to 5 Mbps and extended the length of the offer indefinitely to help ease the Time Warner Cable deal).

Another vague condition prohibited Comcast from discriminating against channels that compete with its own content. Comcast struggled do that as well -- the FCC had to scold Comcast for holding Bloomberg news away from core news channels so it wouldn't hurt Comcast's CNBC (when singled out the company tried, unsuccessfully, to claim its First Amendment rights were being attacked). Another core "tough" condition Comcast cites as example of its over achievement was the promise to offer a 6 Mbps standalone broadband tier for $50 for a few years. From the filing:

"Requirement to provide BIAS on a standalone basis and to offer a new 6 Mbps down service at no more than $49.95 per month: Comcast continues to offer, on a standalone basis and at reasonable prices, any tiers of BIAS that it offers on a bundled or multi-product basis. Comcast also offers its “Performance Starter” tier, a 6 Mbps down standalone BIAS service, priced at $49.95 per month. Pursuant to the Broadband Consent Decree entered into with the Commission on June 27, 2012, Comcast will continue to offer Performance Starter at least through February 21, 2015."

Offering 6 Mbps for $50 is already pretty unimpressive on its face, but becomes even less impressive when you learn that the FCC had to fine Comcast $800 million (while extending the condition) because Comcast hid the option for consumers. Think about that: offering a paltry speed at a high price was too difficult to achieve, yet Comcast would like you to know it's an over achiever. After extending the condition, the FCC patted itself on the back for being so damn good at protecting consumers:

"The unprecedented merger condition extension, significant voluntary contribution, and robust compliance plan send a clear message to the American public and the communications industry that the FCC will vigorously enforce its merger conditions, to the ultimate benefit of consumers."

The message that FCC warning actually sent was that the government is historically only engaged in theater when it comes to most merger conditions. All too often, the "tough" conditions are either volunteered by the target company (because they're easy to meet or even already met), they're specifically designed to be meaningless (as we saw with AT&T's acquisition of BellSouth in 2006), they're conditions prohibiting the company from doing something it would never in a million years do (like block websites outright), or they are very selectively enforced. Like the FCC's dedication to broadband competition, the majority of merger conditions are simply a stage play put on for consumers and consumer advocates.

What does it say when you can't even meet merger conditions intended to be largely theatrical in nature? What does it say when you have trouble meeting merger conditions you yourself proposed? Clearly it says you're a fantastic, immensely-trustworthy overachiever.

This obviously raises the question of what conditions Comcast will urge regulators to impose on its acquisition of Time Warner Cable. Top Comcast lobbyist David Cohen appears to be pushing the promise that Comcast will spin off about three million of the acquired subscribers to form a new cable company. Comcast already expected to have to divest around three million of the acquired customers to another company like Charter (while keeping around 8 million), but spinning those three million users off into a new company would be more tax efficient. That new company wouldn't compete with Comcast, but you can expect that condition to be presented as Comcast being "forced" to improve market competition.

I'd expect the FCC to approve this merger, given deals have to be a unique, skull-rattling type of obviously awful and see unprecedented public outcry (read: AT&T T-Mobile) to prompt the FCC to action. Comcast doesn't directly compete with Time Warner Cable, and both the FCC and Comcast will paint legitimate worries about vertical integration, monopsony power, scale and content leverage as theoretical in nature. Such nuanced concerns are simply easier to take the bullshit bulldozer to in the media. As such, it's not clear what new, meaningless conditions Comcast and the FCC are currently cooking up to pretend to protect consumers from a larger, more powerful Comcast. Perhaps the company should be required to water the office plants? Strict oxygen inhalation and exhalation requirements? The options are limitless.

from the gold-medal-inconsistency dept

Aside from a now-traditional lack of enough live coverage, pretty awful commentary, a ridiculous over-abundance of a strangely limited rotation of ads, making Bode Miller cry and Bob Costas' double eye infection, NBC did a pretty good job covering the Winter Olympics, right? NBC certainly believes so, even though it seems that many Americans found NBC coverage so immensely annoying, they went to great lengths to install VPNs so they could watch Canada's version of the games instead.

What has NBC achingly proud, however, is the fact that the company cleverly worked with Olympics officials to prevent viewers from trying to access the games via non-sanctioned NBC streams and online outlets. According to NBC, the company worked to kill off some 45,000 videos of Olympics competition, and an estimated 5,000 live streams (they avoid showing their math or any historical context for those numbers):

"Officials estimate that 20,000 videos of Olympic competition were kept off YouTube, either through filtering technology that prevents them from being posted in the first place or locates and takes them down shortly after they are added. Another 20,000 were stopped from distribution on similar video-sharing sites popular elsewhere in the world, like Dailymotion in Europe or VK.com in Russia, NBC said."

Right, well, good job I guess. The problem is that while NBC was busy waging their proud war on Olympic videos, they were simultaneously engaged in practices that were driving users to those same viewing options. While NBC did offer some live streams on their website, they were largely restricted to customers that only pay for cable, as part of the industry's lame "TV Everywhere" mindset (a mindset that increasingly doesn't seem to be doing much of anything for anybody, including cable). Worse, even some paying TV customers, like those paying for Comcast's new HBO, basic cable and broadband bundle, weren't allowed to watch the streams because they weren't buying expensive enough TV packages.

To hear NBC tell it, this kind of absurd inconsistency in policy is all a perfect example of how when NBC and sanctioned friends work together to be inconsistent, it results in online perfection:

"When all the players in the digital ecosystem cooperate and work together, it is possible to create an online environment in which legitimate commerce thrives, jobs are created and consumers receive content how, when and where they want it," said John McKay, NBC spokesman."

A real gold medal performance all around, NBC. You really stuck the landing.

...and in order to download the Android app, Engel had to disable a lock that prevents such downloads -- something few users do [update].

While your average person might be lured to sketchy sites supposedly related to the Olympics, most of these people wouldn't have disabled the default locks on their phone, as Robert Graham at Errata Security points out.

The truth makes for a much less interesting story, however, and as Graham points out, Engel's use of the passive voice ("the phone was hacked" rather than "I downloaded a virus") deliberately obscures what's actually happening on the video. It's not Sochi's wireless connections that are "infected," it's the sites themselves. No one's getting hacked instantly unless they're going out of their way to act carelessly in a potentially hostile environment. Following normal internet safety procedures should keep journalists and Olympic fans protected -- preventative measures that NBC could have chosen to deliver with its report, except that they would undercut the narrative it was crafting. There is no doubt that the influx of out-of-town visitors presents an enticing target for aspiring hackers, but there's no reason to believe any device will be insta-compromised the moment it connects to the internet.

"The claims made on the blog are completely without merit," according to a representative from NBC News.

The NBC rep also noted that the report made it clear from the beginning that the taping was done in Moscow. The report was intended to demonstrate that a person was more likely to be targeted by hackers while conducting searches in Russia, the representative added, acknowledging that these attacks can happen anywhere in the world. In addition, the story was designed to show how less technically savvy people can fall victim to such a cyberattack.

But NBC's story carried this headline:

Hacked Within Minutes: Sochi Visitors Face Internet Minefield

Even with the appended disclaimers, the report was obviously intended to present Sochi as a hackers' paradise where anyone -- even those not stupid enough to visit rogue websites or purposefully sideload sketchy apps -- can be compromised before their coffee cools. And the phrasing used by the reporters is equally as misleading. The following quotes are taken from the transcript (which, to NBC's credit, opens up with "Welcome to Moscow").

>> reporter: good evening, brian. the state department warns the travelers should have no expectation of privacy. even in their hotel rooms. you are immediately exposed as soon as you try to communicate with anything. one of the first thing visitors to russia will do is log on. hackers here will count on it. we decided to find out how dangerous that could be.

>> reporter: with our new computers loaded with attractive data, we headed for a restaurant, where we used a new smart phone to browse for information about the sochi olympics. almost immediately we were hacked.

>> did you see where it said downloading?

>> i did.

>> it's actually downloading a piece of malware.

>> malicious software hijacked our phone before i even started my coffee.

This would be the malware consciously downloaded by the reporter. Note that it's stated that the phone is downloading the malware on its own, rather than with any assistance by the journalists.

>> back at the hotel will hoyt was using specialized software to monitor my two computers. and sure enough, they had also been hacked.

No mention of visiting unknown sites. The assumption is that hackers accessed the computers on their own, rather than having a door propped open by Engel's visit to malicious sites, most likely sites that any decent browser/search engine would have warned might be an unsafe place to visit.

>> it had taken hackers less than one minute to pounce. within 24 hours they had broken into both computers and started helping themselves to my data.

"Pounce?" On what, the Welcome mat the journalists laid out? God helps those who help themselves to data, but the devil's editor visits compromised sites in search of a good story.

>> reporter: american athletes and fans now coming to russia by the thousands are entering a minefield. the instant they log on to the internet.

>> the best way to protect yourself is quite simple, if you don't really need a device, don't bring it. try to avoid the public wifi. and if there's anything particularly and uniquely important on your computer or phone, banking information or photographs, remove it before coming to russia.

"The instant they log on…" Obviously false. Pre-priming your devices for failure will "allow" you to be hacked before your coffee cools, but following some very basic security measures will keep devices safer. Sure, there's likely a higher concentration of hacking activity in Sochi with so many potential targets in the area, but that's no excuse to promote fear over facts and for journalists to intentionally sabotage their own equipment just to ensure the eyeball-grabbing headline actually fits the content. It's not just bad journalism, it's also irresponsible. NBC could have used this time to outline the same basic safety precautions Graham does in its blog post, but was obviously more interested in reinforcing its viewers' perception that Russia is the Internet Wild West, where even the safest surfer will be hacked to unrecognizability by malicious electro-bandits at the faintest whiff of a wi-fi signal.

from the moving-forward dept

Just last week, we noted that a court in NY had rejected an attempt by ABC and CBS to shut down DISH's AutoHopper offering that helps users automatically skip commercials (along with their PrimeTime AnyTime feature that automatically records prime time network TV). That came after a ruling in California in a nearly identical case, this time by Fox and NBC. That case had moved forward and it appears that, yet again, a court has said no to the attempt to get an injunction against DISH. The full decision isn't out yet, but the parties have seen the ruling and it's clear that DISH won, and Fox didn't:

"We have just received the ruling, and while the judge found that Fox could prevail at trial on the merits of the case, she did not grant our preliminary injunction," says a Fox in a statement. "We disagree that the harms caused by Dish’s infringing services are completely compensable by damages, and as a result we are looking at all options. We will file a response in due course."

While the details matter, it seems pretty clear that (as the court has said before), even if DISH is found to have infringed (though it expresses some skepticism on the likelihood of such an argument working), the court doesn't see any irreparable damages from letting the technology move forward. This is a good thing. All too often, it seems that the copyright maximalist organizations view any possible infringement as "irreparable" harm, even though it's nothing of the sort.

from the and-off-we-go dept

Last year, DISH won a nearly complete victory against Fox and NBC in California over the legality of DISH's AutoHopper feature, which skips over commercials with shows that the DVR offering records. However, there were two separate lawsuits on this issue: that one in California, and another one involving CBS and ABC in New York... and that court has basically ruled the same way, refusing to grant the networks an injunction to block the DISH product. The full ruling is under seal (most likely to redact certain parts) and will be released with redactions sometime soon (next week, I think).

As the link above notes, the court did say that CBS could try to unwind its retransmission agreement with DISH, arguing that DISH misled the company when they were working on that agreement. It also notes that ABC's carriage agreement with DISH expires at the end of this month, and that "negotiations [are] not going well, with a possible blackout happening soon." In other words, the networks are likely about to shoot themselves (and the public) in the foot by pulling their channels from DISH in a petulant act of self-harm, because they're upset that DISH is innovating and offering the public what they want in a manner that the networks won't do.

from the last-ditch-shot-at-a-pyrrhic-victory dept

Broadcasters are understandably sick of the fellas at the freaking FCC. It's 2013, but shows on the public airwaves are still forced to follow a weird pastiche of morality rules seemingly cobbled together from the standards of multiple different generations and interest groups. Not only are these rules extremely questionable in a country with free speech, they are plainly obsolete: everyone has easy access to the whole perverted rainbow of obscenity, and enforcing a moral standard of media is clearly a matter of personal and family responsibility. Public TV networks no longer have the influence on culture that they used to, given competition from cable, online media, and other things over which the FCC has no control — and, surprisingly enough, the broadcasters themselves are now making that very argument:

ABC, CBS, Fox, and NBC also say that rules are archaic because the networks have lost so much cultural clout. Fox says in an FCC filing, “Americans today, including children, spend more time engaged with non-broadcast channels delivered by cable and satellite television, the Internet, video games and other media than they do with broadcast media.” In a separate filing, NBCUniversal observes that ”Broadcast TV is not a uniquely pervasive presence in the lives of 21st Century Americans.” Broadcast network affiliates’ total day share of viewing “was just 28 percent in the 2010-2011 television season – compared to the 53 percent viewing share held by ad-supported cable programming networks.” CBS also notes that “the day when a child watching television was almost certain to be watching broadcast television has long since passed.”

Looks like someone at the TV networks realized what year it is too. We may need to update the NBC business model:

Of course, what goes unmentioned is the fact that escaping FCC regulations is clearly part of a plan to regain relevance. Which is entirely fair. There are a bunch of reasons for the decline of network television, primarily technological, but the fact that so many top-level stars, producers and showrunners are flocking to the less-restrictive world of cable and the internet certainly can't be helping. Look at a huge network hit like Seinfeld: after that success, and with a virtual carte-blanche to experiment, of course Larry David would make his next show for a cable network like HBO. And as Julia Louis-Dreyfus once remarked in an episode of said show, "I want to be able to say fuck," so it's hardly a surprise that a show like Veep ends up on HBO too. Plus Veep's creator, Armando Iannucci, hails from the UK with its early watershed hour, at which point broadcast shows can do pretty much whatever they like — it's hard to imagine him wanting to work within the confines of FCC regulations either. That's a whole bunch of talent creating successful, critically-acclaimed shows — and not creating them for NBC, the network that spawned the breakout hit that got the ball rolling in the first place.

Let's hope the FCC listens. The networks have a whole lot of work to do if they want to regain real relevance, and they haven't always been good at it, but I have no desire to see them further hindered by obsolete morality rules pushed by the busybodies at the Parents Television Council (who, it will surprise nobody to learn, vociferously oppose these filings). Let's give NBC a chance to make the next Eastbound & Down or Lucky Louie. Let's let ABC scrap Dancing With The Stars in favor of Katherine Ryan's more innovative The Voice competitor, The Ass. And let's let PTC president Tim Winter squirm in the home theater throne from which he judges all that is wrong on the air, as the epidemic of pixellated nudity becomes an explosion of Game of Thrones-style sexposition. The broadcasters have enough problems already.

from the call-their-bluff dept

The entertainment industry has a long, long history of claiming that if copyright law doesn't go their way, they'll all go out of business. It's the adult version of "if you don't do it my way, I'm taking my ball and going home." If court cases don't go their way, or if the law isn't changed, we've been told over and over and over again for the last century (and more frequently in the last two decades) that the industry will take its ball and go home, because they won't create under such awful circumstances (even if those circumstances really aren't particularly different than they've operated under for years). The latest? First, Fox's COO, Chase Carey, claims that if they lose the Aereo case, they might shut down Fox, the network TV channel, and move all its content to cable TV channels.

“If we can’t have our rights properly protected through legal and governmental solutions, we will pursue business solution. One solution would be to take the network and make it a subscription service. We’re not going to sit idly by and let people steal our content.”

That came out about the same time as another quote from a TV exec, Garth Ancier, who has worked at Fox, NBC and WB, basically saying the same thing, arguing that an unnamed "two" of the four major networks are considering shutting down if the Aereo case (and possibly the Dish Auto Hopper case) goes against them.

“I know two that are talking about it,” he says, leaving open the possibility that the others might be as well. He declines to specify which, saying he’d heard it in a “talking over coffee” setting and didn’t want to betray a confidence....

“To say it’s serious is probably an overstatement,” Ancier says. Rather, it’s a contingency plan the networks in question are keeping in their back pockets in case they can’t prevail over Aereo and Dish in court or find some other way to stave off the threat they represent.

Let's be the first to call bullshit on this. No networks are stupid enough to shut down over this, and if they are, good riddance. Put that spectrum to better use. First of all, network TV shows get a lot more viewers. By a wide margin. Yes, there's an occasional cable show (Game of Thrones) that sneaks in to the top ratings, but it's pretty rare. The cable shows that get the most viewers are still viewed a lot less often than most network shows. If you look at Nielsen's latest rankings for last week, the top 10 network shows all scored higher ratings than the top cable show (Walking Dead). And by the time you're at the 4th most popular cable show, you're talking about a show that's getting just around half of the tenth most popular network show.

No network with any business sense at all is going to give up that prime position for getting viewers, and shunt themselves off into the hinterlands of cable TV. And, seriously, if they do want to cede that position, I'm sure there are plenty of smart folks willing to take over that position. And, of course, nothing that Aereo or Dish Hopper is trying to do does anything to threaten the traditional business model of network TV in the first place: ads. In fact, both serve to increase viewers. The real issue is that the networks have gotten fat and happy off of the money they get from cable and satellite companies for carrying the networks, and they don't want that gravy train to go away. So, an artificial situation came up that let them get lots of money, and now that it might go away (and reality is that it won't go away for a long long time) they're threatening to take their ball and go home?

This is clearly bullshit whining from the networks hoping that lawmakers will protect their revenues from cable and satellite providers. It has nothing to do with "stealing content" as Carey claims. Policy makers would be well served to call the networks' bluff. Let the cases play out and let's see (1) if the networks really give up their prime real estate and (2) if others don't rush in to make use of it.

from the a-good-win dept

As you may recall, Aereo has been in an ongoing legal dispute with the TV networks, who seem to be arguing that anything that disrupts their coveted business model simply must be illegal. While they've won against others, Aereo actually won the first round at the district court level, blocking an attempted injunction. The networks quickly appealed. On appeal, it seemed clear that the judges realized just how insane the situation is. If you don't recall, Aereo sets up a separate individual antenna for each customer, and then streams TV broadcasts to that customer over the internet. This setup makes no technological sense whatsoever. It's inefficient and stupid. But because of the wacky way copyright is interpreted, it's believed to be necessary to avoid being guilty of infringement for doing the same damn thing much more efficiently.

Today, on appeal, the appeals court affirmed the district court ruling, once again blowing a big hole in the networks' arguments. The full ruling (linked above and embedded below) is well worth a read, as it's nice to see the court really try to do its best to truly understand the technology at play, rather than resorting to simplistic and inaccurate analogies, as copyright maximalists often desire. The key to the networks' argument here is that those individual antennas that Aereo sets up are a myth. They claim that it's really one giant antenna. The court disagrees. This issue plays into the big question of whether or not Aereo's service is functionally the same as the (legal) Cablevision remote DVR system, or if it goes too far and is a tool for infringement. The distinguishing factor in that Cablevision case was that Cablevision made a unique copy for every user who requested it (again, stupid and inefficient from a technological standpoint, but this is the life we lead under bad copyright laws). Bizarrely, even Cablevision argued against Aereo here, trying to distinguish its own case (perhaps to handicap a potential competitor).

The court, thankfully, doesn't buy Cablevision's own wacky interpretation, but rather relies on what the court in is case actually said, mainly, that having a unique copy means that it's not doing a "public performance" of the work.

As discussed above, Cablevision’s holding that Cablevision’s transmissions of programs recorded with its RS-DVR system were not public performances rested on two essential facts. First, the RS-DVR system created unique copies of every program a Cablevision customer wished to record. Second, the RS-DVR’s transmission of the recorded program
to a particular customer was generated from that unique copy; no other customer could view a
transmission created by that copy. Given these two features, the potential audience of every RS-DVR transmission was only a single Cablevision subscriber, namely the subscriber who created the copy. And because the potential audience of the transmission was only one
Cablevision subscriber, the transmission was not made “to the public.”

The same two features are present in Aereo’s system. When an Aereo customer elects to
watch or record a program using either the “Watch” or “Record” features, Aereo’s system
creates a unique copy of that program on a portion of a hard drive assigned only to that Aereo
user. And when an Aereo user chooses to watch the recorded program, whether (nearly) live or
days after the program has aired, the transmission sent by Aereo and received by that user is
generated from that unique copy. No other Aereo user can ever receive a transmission from that
copy. Thus, just as in Cablevision, the potential audience of each Aereo transmission is the
single user who requested that a program be recorded.

The court rejects the networks' argument that Cablevision was different because Cablevision had a license for its initial transmission, noting that the case has nothing to do with transmission, but is solely based on the question of whether or not this is a public performance under the Copyright Act. As it notes, if there is no public performance, the license question is moot, as Aereo only needs such a license for the public performance.

The court also responds nicely to the bizarre argument of the networks that because Aereo specifically designed its system to be legal within the confines of the Cablevision ruling, that proves it's infringing. As we noted at the time, this argument doesn't help the networks at all. After all, the courts found Cablevision legal, so it makes sense that Aereo would design with that in mind for the purpose of staying on the right side of the law. The networks' basic argument is, directly, that if you try hard to stay within the law, you must be breaking the law. That's crazy, and the court, rightly, rejects it:

Plaintiffs also make much of the undisputed fact that Aereo’s system was designed around the Cablevision holding, because it creates essentially identical copies of the same program for every user who wishes to watch it in order to avoid copyright liability,
instead of using a perhaps more efficient design employing shared copies. However, that Aereo was able to design a system based on Cablevision’s holding to provide its users with nearly live television over the internet is an argument that Cablevision was wrongly decided; it does not provide a basis for distinguishing Cablevision. Moreover, Aereo is not the first to design systems to avoid copyright liability. The same is likely true of Cablevision, which created separate user
associated copies of each recorded program for its RS-DVR system instead of using more efficient shared copies because transmissions generated from the latter would likely be found to infringe copyright holders’ public performance right under the rationale of Redd Horne.... Nor is Aereo alone in designing its system around Cablevision, as many cloud computing services, such as internet music lockers, discussed further below, appear to have done the same...

In other words, no, designing your system in accordance with the law doesn't mean you're trying to violate the law. As the court later notes, it appears that the networks really want to overrule Cablevision, which is made clear by their claims that Aereo designing within the confines of Cablevision must be infringing. The court notes that even if that's what the networks want, barring a Supreme Court decision in the alternative, they can't change their earlier ruling.

Though presented as efforts to distinguish Cablevision, many of Plaintiffs’ arguments really urge us to overrule Cablevision. One panel of this Court, however, “cannot overrule a prior decision of another panel.” ... We are “bound by the decisions of prior panels until such time as they are overruled either by an en banc panel of our Court or by the Supreme Court.” ... There is an exception when an intervening Supreme Court decision “casts doubt on our controlling precedent,” ... but we are unaware of any such decisions that implicate Cablevision.

There is a dissent from Judge Denny Chin, who argues that because Aereo had to go through the technologically inefficient process it does, that shows why it's infringing.

Aereo's "technology platform" is, however, a sham.
The system employs thousands of individual dime-sized
antennas, but there is no technologically sound reason to
use a multitude of tiny individual antennas rather than one
central antenna; indeed, the system is a Rube Goldberg-like
contrivance, over-engineered in an attempt to avoid the
reach of the Copyright Act and to take advantage of a
perceived loophole in the law.

That argument is really troubling, and it's good that the majority overruled it. If that were true, any inefficient or convoluted process required by the law to remain consistent with copyright law would be seen as evidence of infringement. And that's just wacky. You'd effectively create veto power for any new innovation that way.

Anyway, the case is far from over, but so far Aereo is 2 for 2 and the networks have come up empty. Let's hope that trend continues.